A. G. Breitweiser Lumber Co. v. Crick
A. G. Breitweiser Lumber Co. v. Crick
Opinion of the Court
Opinion by
The first position taken by appellants is that plaintiff’s declaration is not sufficient to call for an affidavit of defense. It does not appear from the record that this question was raised in the court below at or before the time when judgment was entered against the defendants for want of a sufficient affidavit of defense. It is contended here by counsel for appellee that in fact no such question was raised in the court below. However that may be, an examination of the declaration with the exhibits A, B and C referred to and attached thereto convinces us that it is a concise statement of plaintiff’s demand and that it calls for a sufficient affidavit of defense. The Procedure Act of May 25, 1887, P. L. 271, sec. 3, provides: “The plaintiff’s declaration in each of the said actions, namely, the action of assumpsit and the action of trespass, shall consist of a
The plaintiff’s declaration contains the following: “Plaintiff and defendants entered into a written contract which was consummated on March 24, 1911, said written contract being contained in plaintiff’s offer by letter of March 23, 1911, a true and correct copy of which is attached hereto, made part hereof and marked ‘Exhibit A’ and defendants’ acceptance thereof by letter of March 24, 1911, a true and correct copy of which is attached hereto, made part hereof and marked ‘Exhibit B,’ by which contract plaintiff company was to furnish all the mill work for a building being erected by defendants for Phillip Hamburger at No. 140, Sixth Street, Pittsburg, Pa., for the sum of $1,700 to be paid to plaintiff company by defendants. Said mill work was to be furnished in accordance with plans and specifications prepared by Charles Bickel, architect, true and correct copies of said plans are in possession of both plaintiff and. defendants and the same are so large and bulky that it is impossible to attach them to this statement. A true and correct copy of that part of the specifications referring to the mill work for said building .... is attached hereto, made part hereof and marked ‘Exhibit C.’ Plaintiff company has furnished all of the materials constituting mill work shown on said plans and specifications according to its contract and said building has been long since completed. On September 22, 1911, defendants paid to plaintiffs the sum of $1,025.00 on account of said contract for which plaintiff hereby gives defendants credit.
“There still remains due and unpaid by defendants to plaintiff the sum of $675, with interest from October 1, 1911.”
It is well decided and should be considered settled in this state that, “Affidavits of defense should aver the facts depended upon with reasonable precision and distinctness: Markley v. Stevens, 89 Pa. 279. Averments of set-off must be as specific as those used in a statement of claim. The defendant in respect to such a claim is the actor, and the obligation is upon him to aver his set-off in terms incapable of being misunderstood: Loeser v. Warehouse, 10 Pa. Superior Ct. 540. An affidavit of defense is to be taken most strongly against the defendant, for it is to be presumed that he has made it as favorable to himself as his conscience would allow: Comly v. Simpson, 6 Pa. Superior Ct. 12; Kemp v. Kemp, 1 Woodw. 154:” Law v. Waldron, 230 Pa. 458 (see p. 466).
The affidavit of defense avers three several sums as set-off: 1. Defendants claim $303.80 by reason of expense incurred by defendants alleged to have been made necessary by failure of plaintiff to perform its contract. 2. Defendants claim $262.50 for an amount they allege they were compelled to forfeit and pay because of failure to complete their contract by September 1, 1911. 3. They claim $382.82 for loss and damage by reason of employees of defendants having to remain idle or work at odd jobs by reason of plaintiff’s delay
The defendants cite and rely on Lane et al. v. Penn Glass Sand Co., 172 Pa. 252. In that case plaintiffs were to furnish and erect certain machinery including, and intending to include, all things necessary and needful for the setting up and furnishing a complete apparatus for the crushing, washing, conveying and drying sand to the full capacity herein guaranteed by the said first parties, the parties of the first part agree to furnish all of the above machinery and send one man to put up in complete working order and start said machinery. And the said first parties further agree to guarantee said grinding and washing machinery when put up to have a capacity of eight tons per hour and the dryer to have a capa'city of four tons per hour. The defendant filed an affidavit of defense and a supplemental affidavit which denied that plaintiffs substantially performed their contract, and aver that “the mill, plant or machinery they agree to put up under the contract was not erected or constructed in accordance with the terms of said contract, but in such an unworkmanlike
The written contract between the parties, the two
The affidavit further alleges that certain mechanics and laborers were forced to remain.idle by reason of plaintiff’s delay. These charges are not itemized. If the defendants were plaintiffs and were suing to recover for the services of these mechanics and laborers, surely they would have to name or otherwise designate the men and state how long each worked and the value of his services and failing so to do their declaration would not call for an affidavit of defense. On the latter ground the defendants claim to set off $382.82 and if we are correct that this would not be sufficient in a statement of claim by a plaintiff, it must be held insufficient as a set-off.
But are the above claims for damages, on the facts set up in the affidavit of defense, the legal measure of damages in such a case? If plaintiff really delayed in furnishing the mill work and it was not in proper con
In addition to this the rules of court of Allegheny county, as furnished to us by counsel, are not complied with by the affidavit of defense. And it is highly probable that the learned court below took notice of this in considering the affidavit of defense. Rule VIII, sec. 1, provides: “In all actions on recognizances, judgments and other records, mortgages, mechanics’ liens, policies of insurance, book accounts, bills, notes and other instruments of writing for the payment of money, and on all contracts for the payment of money, whether the same be in writing or not, and in all actions founded on contracts, express or implied (whether in form ex contractu or ex delicto) the plaintiff shall file with or
“Section 3. This rule shall apply to a specification and statement of set-off filed by the defendant.”
Rule IX provides that plaintiff shall be entitled to judgment “unless defendant or some one for him shall have filed an affidavit of defense stating therein specifically and at length the nature and character of his defense.”
It appearing in the present case that the contract for the materials to be furnished by the plaintiff was in writing and that the same were actually furnished and used by the defendants and they did not go into the open market and purchase other materials on account of the alleged delay and quality of the materials furnished by plaintiff, and thus fix the measure of damages, and for the further reasons stated in this opinion, we reach the conclusion that the learned court below did not err in granting judgment against the defendants for want of a sufficient affidavit of defense.
The assignments of error are all overruled and the judgment is affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.